Bryan Carter for Lowell Portfolio - need urgent help please

[octet]

Hi,


I'm looking for a bit of advice please.


I have received the bellow letter from the Court:





I have acknowledge the service online via moneyclaim.gov.uk and
in reply I have sent this letter:





Today I am in receipt of this reply from Bryan Carter:





Can anyone please advice what to do next, I haven't got any legal knowledge whatsoever


Thanks a lot!

[Amethyst]

Re: Bryan Carter for Lowell Portfolio - need urgent help please

So you are at the point of entering a defence now by the 13th July?

Do you have a defence to the claim or are you solely arguing on the lack of documents issue?

We need a bit more background to the debt, how was it incurred, overdraft?charges etc? How long ago? etc

As the debt is quite small you may well be able to negotiate an installment offer to avoid a CCJ - obviously depends entirely on your circumstances and whether you truly don't believe it is owed.

[octet]

Re: Bryan Carter for Lowell Portfolio - need urgent help please

Hi and thanks a lot for your reply.

I'd probably need help drafting a defence to be submitted to the Court ASAP. I don't remember owning Lloyds TSB any money when I've closed the account and moved to a different bank. Must be some sort of penalties/charges applied to current account. Also don't remember having any overdraft facility for that current account.

This is a copy of the credit file related to this account, just checked now, perhaps this helps:

[Kafka]

Re: Bryan Carter for Lowell Portfolio - need urgent help please

So this is actually for a bank current account? Your request under CCA suggests that you are treating it as a regulated agreement, which is quite different.

Basically this seems to be penalty charges then, but those are no longer reclaimable since the test case declared that they weren't actually penalties even though they clearly are. If that's the case I don't see how you can defend this easily. You can contest it on the grounds that they have refused to supply any justification for the debt, but even if they did I suspect you wouldn't win. They are also wrong to claim they know the track as it hasn't been allocated and wrong in that there is no duty to disclose.

If it was me I would defend it on procedural grounds but not hold out high hopes. The small amount of the claim means its an easy one to settle for and you could offer this now or pay quickly if you lose. Providing you pay off a CCJ within 30 days (I think) of the judgement you can apply to have the CCJ removed anyway.

If this is a current account then

[octet]

Re: Bryan Carter for Lowell Portfolio - need urgent help please

Yes, it's for a current bank account which I haven't used since 2007 when I switched to a different bank and when the balance was £0.00.

So you're saying I should just pay something that I did not owe initially and just get on with life? :tinysmile_cry_t:

[Kafka]

Re: Bryan Carter for Lowell Portfolio - need urgent help please

I'm saying that if its a current account then it doesn't work the same way as defending a claim for a regulated account, so you can't rely on the same things. The fact you shouldn't owe the charges is tough, but the test case changed the law when the Supreme Court accepted an appeal based on a totally different set of claims. The Govt should have challenged the perjury in the High Court but never did, so you can't now contest charges on current accounts.

However, as you are providing some background now there may be another way. If you are certain that you haven't acknowledged that account for 7 years then you could argue that the account is statute barred being over 6 years. They are saying that the default date was in 2009, but that presumably came long after you stopped using the account?

I would argue that the account is now statute barred and put them to proof that you are liable for anything. They would then have to convince the court that the claim was still valid. For a regulated agreement they become SB if you have not formally acknowledged the debt or paid into the account for 6 years before the date the claim was filed. I'm not sure how its calculated on a dormant current account so perhaps someone can advise?

[octet]

Re: Bryan Carter for Lowell Portfolio - need urgent help please

I was going to go this route with the defence, what do you guys think?

1. It is admitted with regards to the Defendant having use to bank with the original creditor Lloyds TSB Bank, but closed his account in 2007 when the Defendant moved to a different bank.

2. The Defendant denies that the alleged amount was for finance service or goods, but is as a result of unfair and extortionate bank charges/penalties being applied to the account.


3. I refute the Claimants claim is owed or payable. The amount claimed consists totally of default penalties/charges levied on the account for alleged late, rejected or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.


4. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.


5. The claimant is denied from added section 69 interest within the total claimed that as yet to be decided at the courts discretion.


6. As per Civil Procedureicon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.


The claimant is also put to strict proof to:


(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.
(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.
(c) Provide a breakdown of their excessive charging/fees levied to the account with justification.
(d) Show how the Claimant has reached the amount claimed.
(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.
(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.


7. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 02 July 2014 namely the Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request.


8. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[octet]

Re: Bryan Carter for Lowell Portfolio - need urgent help please

Update on this one as well, sorry it took so long, completely forgot about it: